Mishpatim 5784

Plato, Hobbes, and Torah

My. friend from graduate school days, Michael Zank of Boston University, recently gave a talk called “Torah in Light of Plato’s Laws,” and was kind enough to send me a draft of it. My own education in philosophy stopped after about 15 minutes, when the professor whose class I had walked into said the word semiotics, but I’m interested in philosophy and have tried to learn about it in the way an educated layman might.

That will certainly show up in what I’m about to write. Apologies to Michael and to my other professional philosopher-friends for the amateur thinking-out-loud I’m about to do.

What Plato taught me about the Torah is to start thinking about the question of how law gets started. Michael presents this section from Laws 624a:

Athenian
To whom do you ascribe the authorship of your legal arrangements, Strangers? To a god or to some man?

Clinias
To a god, Stranger, most rightfully to a god. We Cretans call Zeus our lawgiver; while in Lacedaemon, where our friend here has his home, I believe they claim Apollo as theirs.

If your laws aren’t given by a god, they have to start in some historical way. We all know (or at least, as good citizens, we should know) how new laws are enacted. But that depends on there already being laws about how to make laws. I ask again, how did it start?

The “United States of North America,” 11 years after we declared our independence, was run by a set of rules called the Articles of Confederation. I don’t know the history of how the Articles of Confederation came into being — and that, I believe, is how most of us are most of the time. We have laws, but rarely think about how the system of law got started.

The “Articles” were not working out that well, and so the states sent representatives to try and fix things. The representatives decided, on their own, not to repair the Articles but to replace them. That was a completely irregular action.

What they did next was the Miracle at Philadelphia. They created the Constitution that has essentially served as the rulebook for the United States ever since. How did it go into effect? The document they created simply declared (in Article 7) that it would go into effect when 9 of the 13 states approved it — in those states that did approve it. And that’s exactly what happened. It is a little like Ptah, the Egyptian god who first created himself and then created the universe.

Mishpatim, the name of this week’s reading, means “laws,” one of a number of biblical words that are more or less synonymous. Different voices in the Torah use different combinations of these words. (For a lengthier discussion of this subject, see the chapter on “Legal Voices” in my book The BIble’s Many Voices.).

The word torah (תורה) itself is one of those words. Based on the Greek translation νόμος (nomos), the Torah itself is often called “The Law” in English — but that’s a misleading translation. A more literal expression for it would be “The Teaching” or “The Instruction” or — taking a suggestion from Word’s handy synonym finder — “The Philosophy.” Like the Cretans and Spartans in Plato’s Laws, the Torah too understood that the Israelites had gotten their laws from God. The mishpatim of Exodus 21-24 give Parashat Mishpatim its name.

The largest section of this week’s reading is a collection in Exodus 21-23 called by scholars the Covenant Code. That’s because Exodus 24 describes the ceremony by which these laws given by God to Moses become the laws of the human community. It’s a narrative describing the sealing of the covenant — that is, the agreement — between God and the Jews.

In that narrative, the laws are presented to the people and then voluntarily accepted:

^{Exod 24:3} Moses went and repeated to the people all the commands [דִּבְרֵ֣י divrei] of the LORD and all the rules [מִּשְׁפָּטִ֑ים mishpatim]; and all the people answered with one voice, saying, “All the things that the LORD has commanded we will do!” ⁴ Moses then wrote down all the commands of the LORD.

And voila, you have a “constitution” for the Israelites. But the story goes one step further. “The entire people” (כָּל־הָעָ֜ם kol ha-am) has agreed to the terms, but there must be a more formal ceremony to ratify the new system. The chapter goes on (in the NJPS translation) to describe a kind of “blood brothers” ritual:

⁴ … Early in the morning, he set up an altar at the foot of the mountain, with twelve pillars for the twelve tribes of Israel. ⁵ He designated some young men among the Israelites, and they offered burnt offerings and sacrificed bulls as offerings of well-being to the LORD. ⁶ Moses took one part of the blood and put it in basins, and the other part of the blood he dashed against the altar. ⁷ Then he took the record of the covenant and read it aloud to the people. And they said, “All that the LORD has spoken ^awe will faithfully do!” ⁸ Moses took the blood and dashed it on the people and said, “This is the blood of the covenant that the LORD now makes with you concerning all these commands.”

Blood on “the people” (that is, on those 12 pillars representing them) and on the altar (representing YHWH, the Lord) connects the Lawgiver and the recipients of the law and (somehow) inaugurates the system.

Plato goes on to describe laws as the medical remedy for an ailment (a metaphor that rabbinic tradition also uses). One would treat a slave differently than one would treat an independent actor, who might be capable of and intent on having “informed consent” with regard to his treatment. This is a metaphor that could indeed be productive in thinking about the Torah as well. As God says twice in Leviticus 25, the Israelites “are My slaves, whom I freed from the land of Egypt.” Instead, at this point I’m going to make a 90º turn. Plato, meet Thomas Hobbes.

As Sharon Lloyd and Susanne Sreedhar write in the online Stanford Encyclopedia of Philosophy …

Hobbes is famous for his early and elaborate development of what has come to be known as “social contract theory”, the method of justifying political principles or arrangements by appeal to the agreement that would be made among suitably situated rational, free, and equal persons. He is infamous for having used the social contract method to arrive at the astonishing conclusion that we ought to submit to the authority of an absolute—undivided and unlimited—sovereign power.

As Hobbes thinks, humanity in a state of nature would find it impossible to have “the basic security upon which comfortable, sociable, civilized life depends.” The solution is to establish what we now call a “social contract,” mutual agreement to give up a portion of one’s natural self-sovereignty in order to establish a group that can provide itself with a civilized society. That, I submit, is what the Israelites are described in Exodus 24 as doing.

In the state of nature there are no laws; when the group grows to be over a certain size, you’ve got to have them, and there must be some story that explains how you got them. The Miracle at Philadelphia is that kind of story, a (mostly) true one: the story of how the American system of government was created.

Calling it a “miracle” leaves open the implication that (as many Americans like to believe) some divine hand was at work. That’s of course stated explicitly in the Exodus 24 story as well. But it is not just the legal system that is created at such moments.

Acquiescence in a legal system established by social contract establishes not merely a framework of laws. It also establishes a people, a nation. The U.S. Constitution was written by a small group of men in Philadelphia, a few blocks from where I used to live, and ratified by legislatures in the 13 states. But it asserted, in its Preamble, that …

We the People of the United States … do ordain and establish this Constitution for the United States of America.

Exodus 24 describes, in a similar way, how the 12 Israelite tribes established a constitution for themselves and, in doing so, became “We the People” of Israel.

Update on the Articles of Confederation from the National Constitution Center.